Bulgaria

The composition of the Bulgarian Supreme Judicial Council, a body deciding on judicial careers, raises concerns. Currently, judges elect only six of the 14 members of the Judicial College of the Supreme Judicial Council. The high proportion of members appointed by the National Assembly, the parliament, poses the risk of politicising the Council’s decision-making and undermining its independence, according to the Council of Europe’s Group of States against Corruption (GRECO). The European Commission’s 2022 Rule of Law Report urged Bulgaria to change the Council’s composition so that it includes more judges elected by judges. The government has made no progress in fixing the system, however. The government informed the Commission that changing the Council’s composition would require a constitutional amendment, which could not easily be achieved in the current political climate

Another pressing issue revolves around the significant influence wielded by the prosecutor general within the Council. The parliament has discussed legislative amendments meant to curb this sway within the Council. Proposed measures included limitations on the election of prosecutors to the Council through the parliamentary quota. In June 2023, however, the president of the republic vetoed amendments that included this proposed change, due to potential concerns over its constitutionality.

In late July 2023, media reported on planned constitutional changes to restructure the Supreme Judicial Council. The proposal envisaged splitting the current Council into two separate bodies – judicial and prosecutorial. It would also entail letting judges elect judge members of the Judicial Council from among themselves, and giving these members the majority of seats.

Even if the proposed changes are made, an immediate increase in the independence of the Supreme Judicial Council – and the judiciary as a whole – is unlikely, given the pre-existing informal dynamics. It is believed that the parliament-appointed members of the Council act in line with governmental preferences. While adjustments in the Council’s composition might theoretically reduce political influence, this will not be enough to de-politicise the Council and reverse its capture in the Bulgarian context. This is because political influence goes beyond the Council’s politically appointed members. Experts contend that the Council as a whole “complies with the whims of the executive”, and is willing to ask for and/or receive instructions from government ministers. The media has reported about the Council members’ subservience to high ranking government officials, and even about council members reporting to those officials about what is happening in the Council. Notably, the appointment of Ivan Geshev as prosecutor in 2019, despite public protests, and the early termination of his mandate on 12 June 2023, once keeping Geshev in this position became a liability for his political backers (chiefly, the former Prime Minister, Boyko Borisov), have been invoked as evidence of Council’s political dependency.

Isolated formal (legislative) changes will not solve these systemic and informal problems. The problems emanate from politicians’ lack of respect for judicial independence and certain judges’ loyalties towards or dependencies on politicians. Such changes can create the illusion of progress and serve as a convenient façade covering up external and internal dependencies. While there may very well be independent judges in the Bulgarian judiciary, elections to the Supreme Judicial Council can easily be manipulated to favour judges aligned with politicians. As regards the prosecutorial college of the Council, due to vertical structure of the Prosecutor’s Office, all members elected from among prosecutors and investigators are direct subordinates of the prosecutor general, and will likely vote the way the latter does, fearing for their careers. In the absence of checks on the Council, its decision-making powers could easily be abused, even if the law seems to fit the European standard. Monitoring bodies should therefore analyse not only the law on paper, but also its implementation and any informal practices, especially those that undermine legislative changes meant to empower judges.

Regarding the Inspectorate of the Supreme Judicial Council, responsible for proposing disciplinary actions to the Council against judges and prosecutors, its members are appointed by the parliament. In its October 2022 opinion, the Council of Europe’s Venice Commission warned that political involvement in these appointments “increases the risks of political attachment, thus compromising the independence of the judiciary.” To mitigate these risks, the Venice Commission recommended involving the Supreme Judicial Council in the selection/nomination process of Inspectorate members.

In June 2023, the Union of Bulgarian Jurists called for reform along similar lines, emphasising that candidates for membership in the Inspectorate are to be nominated by the judiciary, and not by the National Assembly.

The European Commission’s 2022 Rule of Law Report also recommended that Bulgaria reduce the risk of political influence over the Inspectorate by involving judicial bodies in the selection process. As highlighted in the 2023 follow-up, however, this recommendation has not been acted upon, with the government citing the need for a constitutional change.

While addressing direct involvement of judicial branches is crucial, strengthening the Supreme Judicial Council’s role might not sufficiently mitigate risks, at least as long as this body remains politically captured.

Both the Supreme Judicial Council and its Inspectorate have been functioning with expired mandates, since 2022 and 2020, respectively. The parliament’s inability to form the required two-thirds majority to elect the members of these bodies has delayed their renewal. Since 1 July 2021, the Council has operated with only four peer-elected judges, due to resignations. Moreover, on 26 May 2023, the parliament also passed an amendment that annulled the 2022 elections of peer-elected judge members. The European Commission viewed this move as a potential threat to the independence of the Council members, and that of the judiciary as a whole. However, NGO reports (for example, by the Bulgarian Institute for Legal Initiatives Foundation) signaled that these elections were not without problems, particularly with regard to the electronic voting system.

The European Commission expressed concerns about the excessive use of secondments of judges in Bulgaria. According to the European standard, secondments should happen only exceptionally, on a temporary basis, and with the consent of judges. There is a risk that the authorities deciding on secondments – in the case of Bulgaria, court presidents – will abuse their authority and second judges or terminate secondments to sanction them, making them dependent and vulnerable to pressure. In its 2017 opinion, the Venice Commission saw the discretionary powers of court presidents to second judges and the lack of external checks on this power as problematic.

On 26 May 2023, the parliament changed the law to avoid the possibility of seconding prosecutors and investigators to an open position for an undetermined period. The amendment did not, however, cover judges. The government finalised promotions to reduce the need for secondments, but the Commission concluded that this action, by itself, would not prevent the widespread use of secondments and eliminate risks for judicial independence.

The Bulgarian prosecutor general wields significant unchecked power over the criminal justice system, inherited from the country’s communist past. Judicial checks on the prosecutor general are limited, leading to rulings from the two European Courts. Notably, as highlighted by the Court of Justice of the European Union in the case C-648/20 PPU, of 10 March 2021, a judicial review of a prosecutor’s decision to issue a European arrest warrant is only possible in Bulgaria after the requested person is surrendered, not before. The EU law requirements for protecting the rights of a person who is subject of a European arrest warrant are not fulfilled where the warrant issued by a public prosecutor cannot be reviewed by a court in an issuing state prior to the surrender of the requested person by the executing state. The European Court of Human Rights has also called Bulgaria out for non-compliance with the European Convention on Human Rights, particularly due to prosecutor’s detention orders not being subject to judicial review (Zvezdev v Bulgaria).

Judicial review of prosecutors’ decisions to refuse opening investigations was only introduced in May 2023. It extends only to particularly serious crimes and a number of other corruption-related offences. Because of the vertical structure of the prosecutor’s office, the aggrieved party has to first appeal the refusal to investigate before the higher standing prosecutor, and only after the decree is confirmed can it be appealed before the court.

Critics express concern that the European Commission has been overly lenient, issuing sugar-coated reports, often ignoring – and even legitimising – prosecutorial self-aggrandisement. They contend that this approach has undermined the Cooperation and Verification Mechanism, a framework designed to help Bulgaria catch up with other Member States in the areas of the rule of law and the fight against corruption.

In its Rule of Law Reports, the European Commission has highlighted some long-standing areas of concern, such as a lack of mechanisms for an effective criminal investigation of the prosecutor general, following up on the pronouncements of the European Court of Human Rights (ECtHR) and the Council of Europe on the matter. In Kolevi case, the ECtHR pointed out that no prosecutor would bring charges against the prosecutor general, due to the centralised, hierarchical structure of the prosecution system: the prosecutor general and high-ranking prosecutors could set aside any such decision taken by a subordinate prosecutor or investigator. The judgment also emphasised the fact that the prosecutor general could only be removed from office by the Supreme Judicial Council, some members of which were his subordinates. The ECtHR concluded that it was practically impossible to conduct an independent investigation into circumstances implicating the prosecutor general.

Under the law enacted on 26 May 2023 to fulfil commitments under Bulgaria’s Recovery and Resilience Plan, when grounds exist for starting an investigation against the prosecutor general or their deputies, the Prosecutorial College of the Supreme Judicial Council appoints a randomly selected judge as an ad hoc prosecutor responsible for the investigation. The Criminal Chamber of the Supreme Cassation Court approves the list of candidates from which the ad hoc prosecutor is selected. In the event the prosecutor general or their deputies are indicted, and following the same procedure, a second judge would be appointed to the position of deputy prosecutor general to supervise the acts taken by the first judge appointed as ad hoc prosecutor.

The European Commission acknowledged these changes as positive, referring to the assessments of the Venice Commission and the Committee of Ministers, in the context of the execution of the European Court of Human Rights’ Kolevi judgment. The Venice Commission offered an overall favorable evaluation of the accountability model proposed by the draft law. It concluded that the system would align significantly with the requirements set out in the European Court of Human Rights’ judgments in the Kolevi and S.Z. v Bulgaria cases. Nonetheless, the Commission expressed concern that hierarchical control would enable higher standing prosecutors to exert undue influence over the ad hoc prosecutor, and recommended introducing safeguards to avoid having the latter’s independence undermined.

In June 2023, the Council of Europe’s Committee of Ministers welcomed the long-awaited reform introducing an independent investigation mechanism against the prosecutor general. However, the Committee acknowledged several areas of concern that could undermine the effectiveness of the accountability mechanism, such as the risk of improper use of criminal or disciplinary instruments by the Prosecutorial college of the Supreme Judicial Council (over which the prosecutor general has considerable influence) against the ad hoc prosecutor in charge of investigation, as well as the apparent possibility that the prosecutor general or their deputies (if not a suspect) would review some of the decisions of the ad hoc prosecutor. The Committee invited the authorities to provide their assessment on the need to further strengthen the mechanism of investigation.

Disagreements arose over the constitutionality of the 26 May 2023 amendments, considering the Constitutional Court’s prior case law. On 5 June 2023, the prosecutor general contested the constitutionality of the law.

To conclude, notwithstanding the legal improvements, concerns linger about the practical effectiveness of these accountability mechanisms. The prosecutor general’s influence over the Council and the entire justice system may undermine the entire process. There is a risk that a judge assigned to investigate the prosecutor general will lack integrity or fear retaliation. Observers have flagged that the list of judges that can be entrusted with such investigations (the list compiled by the Criminal Chamber of the Supreme Court of Cassation) includes some controversial figures.

Bulgarian courts are not contesting the authority and judgments of the supranational European Courts rigorously and systematically, as is the case with the Polish Constitutional Tribunal. Nevertheless, Bulgaria has previously invoked the concept of constitutional identity to support judgments that contradict EU law. One such case revolved around the citizenship and potential stateliness of a child born to a same sex couple – two women, Bulgarian and British nationals, respectively. The Bulgarian authorities denied the couple a birth certificate for their daughter, who was born in Spain, a document that was necessary for obtaining identity papers. The Sofia municipality requested information about the child’s biological mother and father, information necessary under Bulgarian law for the issuing of a birth certificate, and then refused to issue the certificate, based on the contradiction of the same sex marriage with Bulgarian public policy. The parent appealed the decision at the Sofia Administrative Court, which then stayed proceedings and requested a preliminary ruling from the Court of Justice of the European Union.

The referring court raised its doubts as to whether by refusing to issue a birth certificate, due to the refusal of the women to indicate which one was the biological mother, the Bulgarian authorities infringed on the child’s rights under the Charter of Fundamental Rights. It also asked whether permitting same-sex parents to be listed on a child’s birth certificate, despite the traditional heterosexual family being deeply established within the Bulgarian Constitution and legal tradition, would adversely affect public policy and the country’s national identity. The referring court proposed, in order to strike a balance between the Bulgarian constitutional and national identity and the child’s right to private life and free movement, that it only accept the inclusion of one of the mothers’ names on the birth certificate.

The CJEU noted that, while the European Union must respect Member States’ national identities, a member state cannot unilaterally determine the scope of public policy without EU oversight. The CJEU resolved the case from the perspective of the best interests of the child, without going into a deeper analysis of national or constitutional identity. The central finding was that if one member state issues a birth certificate to a child designating two persons of the same sex as that child’s parents, other member states are obliged to issue that child an identity card without requiring a birth certificate from its own national authorities, guaranteeing the child freedom of movement across the EU.

The Supreme Administrative Court did not rule in line with the CJEU prescriptions. After the CJEU judgment, the District Court ordered city hall authorities in Sofia to issue a birth certificate, but the Supreme Administrative Court overturned this decision and refused to recognise the child’s Bulgarian citizenship.

Experts have highlighted fear as a major obstacle for judges that are independent and competent in terms of filing requests for preliminary references.